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Amending the Constitution

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Amending the Constitution Chapter 3 Amending the Constitution The 1921 Armidale Convention had resolved that there would be a double thrust to the New-Staters' efforts. They would petition the NSW Parliament - the issue will be explored in the next chapter - and they would strive for an amendment of the Commonwealth Constitution. Initially, this amendment would be sought via a submission to a proposed constitutional convention. When no convention was held, the New-Staters pressed for a constitutional amendment via a Federal referendum. Never having the numbers in the Federal Parliament, the parliamentary supporters of New States never secured their desired amendment, even when they were in Government. They could not overcome the hurdles. This chapter will examine the hurdles and the attempts to amend the Constitution between 1919 and 1930, and will analyse how Page and Thompson responded when they came up against complex political structures and diverse political agendas in the Federal arena. Constitutional amendment was possible, but there would be hurdles to overcome. The first part of this chapter will outline the hurdles, so that the New- Staters' efforts will be set in the context of what was necessary. Amending the Constitution would require a national referendum. I A straight-out referendum would require a bill to be drafted, tabled, debated and passed by a majority in both Houses. On the other hand, if a majority in the Houses did not favour a referendum, then the key political issue for reformers would be how to secure the majority. Securing the parliamentary majority was the first hurdle. A referendum would be expensive and the outcome would be unpredictable; it would be anybody's guess how the majority of electors in a majority of the States would vote. The second hurdle was to secure the majority in a national referendum. The need for constitutional amendment had long been recognised; between 1919 and 1930 various means were advocated for securing agreement on the desired amendments. During 1919, the Nationalist Party overcame the first hurdle when bills were drafted, tabled, debated and passed by a majority in both Houses, for a referendum to be held in conjunction with the 1919 Federal election. The two 1 See Chapter VIII of the Commonwealth Constitution. MA (Mons) Thesis Chapter 3 Amending the Constitution 70 proposed amendments were rejected; the second hurdle had not been overcome.2 During the next election, the Prime Minister, W.M. Hughes, said that proposals for constitutional amendment "ought to be treated as non-party measures", but "the fact remains that amendments put forward by one party have been opposed by its opponents". 3 He believed that amendments framed by the party in power and submitted at a referendum would not be approved by the majority of electors in the majority of the States. His proposed solution was a constitutional convention followed by a referendum. This method, however, would be more complicated, because a convention could only suggest amendments which could not be adopted without a Federal referendum. For a convention to be held, a bill would have to be passed through both Houses, then after the convention, another bill would have to be passed for a national referendum to be held. Thus, a convention followed by a referendum would be more expensive and the outcome would be more unpredictable and would exacerbate the difficulties already mentioned. In 1921, a bill for a constitutional convention was drafted, tabled, and debated, but suitable to none of the parties, the bill was defeated and shelved. A parliamentary majority had not been secured; the bill did not get over the first hurdle. There were other problems with a constitutional convention. As shown in 1921, there was the difficulty with the enabling legislation, because the political parties and the States disagreed on the proportions of representatives; there would also be the huge expense of electing a convention; lastly, the results would have to be debated in the Federal Parliament before submission at a national referendum, whose vicissitudes have already been mentioned. The problems with a convention were well summed up in 1927, by J.G. Latham, the Attorney-General, who said: "a convention is a practical impossibility".4 Between 1923 and 1927, S.M. Bruce, the new Prime Minister, switched from advocating a constitutional convention, to advocating a constitutional session, then a select committee, and finally, a royal commission. In 1927, given that a constitutional convention was "a practical impossibility", the Government tried to appoint a select committee, but Labor would not co-operate. Accordingly, the Government opted for a royal commission. Another option - a parliamentary 2 For a summary of Federal referendum proposals and their outcomes, 1901-19, see Commonwealth Parliamentary Debates (CPD), 14 March 1930, vol. 123, p. 179. 3 National Policy and Record, the Prime Ministers Policy Speech, Tuesday, 26 October 1922, Sydney, 1922, copy in Latham Papers, NL, MS 1009/24-13. 4 Ballarat Courier, 8 August 1927. MA (Hons) Thesis Chapter 3 Amending the Constitution 71 constitutional session - had been overlooked. No explanation was given for not holding the constitutional session. It seems the Government was not serious about the amendments and had proposed a royal commission because it would look as though something was being done, when all that was happening was that time would be passing. Latham's claim that "a commission is the simplest way out of the difficulty" was more telling than he thought.5 There were other hurdles which the New-Staters would face in their attempts to amend the Constitution and these must be outlined also. The proposed amendment would have to be appropriately worded, but the wording was contentious. The new provision(s) in Chapter VI of the Constitution would have to specify whether a referendum should be held solely in the proposed New State area, or in the State as a whole before the Commonwealth would continue with the separation process. It seems doubtful that a constitutional amendment would be agreed to if it ruled out the opportunity for the State as a whole to express its opinion on the separation of its territory. On the other hand, any amendment which included the requirement of the State's approval would be no significant improvement on the existing provision in Section 124. The wording of the amendment was a vexed issue. As noted in chapter 1, logistically, it should have been less difficult to secure the New State via the existing Section 124, than by attempting to amend the Constitution. Early in the 1920s, however, it seemed eminently sensible for the New-Staters to seek an amendment to the Commonwealth Constitution rather than seeking the approval of the NSW Parliament. As it turned out, however, the New- Staters would never got past the first hurdle, they would never secure a parliamentary majority, and therefore, would never secure a constitutional convention or a Federal referendum. ******************* The second part of this chapter will analyse the emergence of a third party and the party's various attempts to secure a bill for a constitutional convention. It was noted in chapter 1 that Earle Page had won Cowper at the December 1919 Federal elections. Subsequently, early in 1920 he joined with some other country members in the Parliament to form a third party, the Australian Country Party (ACP). The ACP arose from the Australian Farmers' Federal Organization (AFFO), which had been formed in 1917 to provide a national link between 5 Loc. cit. MA (Hons) Thesis Chapter 3 Amending the Constitution 72 affiliated State bodies. Some twenty-six AFFO candidates were nominated at the Federal election in December 1919; some also had the endorsement of the Nationalist Party. Of the twenty-six candidates, fifteen were successful, eleven of them in the House of Representatives. Their success was due to the newly introduced preferential voting, because the danger of vote-splitting had been eliminated. 6 The emergence of the ACP was an expression of agrarian unrest; this point was noted in chapter 2. There were eleven ACP members in the House of Representatives.? Although the party would hold the balance of power, its clout would be undermined because the party did not always vote as a whole. The ACP was not united on many issues and lacked the discipline of the Labor Party or the cohesion of the Nationalists. The Country Party included a radical group which would support Labor against the Nationalists, a conservative group who were totally opposed to Labor, and a middle group of varying views. 8 This did not augur well for the use of its balance of power. The party met in Melbourne, the temporary Federal Capital, in January 1920. 9 Having elected the office bearers, the party got down to the business of constitutional reforms. The AFFO had included constitutional reform on its 1919 platform. 1 ° The ACP resolved that the proposed convention "should be elective on its basis", that each State "should have an equal number of delegates" to be elected by proportional representation, and reflecting "community of interest" with "proper rural representation". 11 This decision about the selection of delegates for the proposed convention would later be adopted as the official view of the Northern New State Movement. 6 Farming parties had insisted on contesting elections, and had split the Nationalists vote; the Nationalists agreed to introduce preferential voting to prevent Labor from winning the elections. See U.R. Ellis, A History of the Australian Country Party, Melbourne, 1963, pp. 41-44; Cecil Edwards, Bruce of Melbourne: Man of Two Worlds, London, 1965, pp. 40-2; B.D. Graham, The Formation of the Australian Country Parties, Canberra, 1966, pp. 126-9. 7 The ACP members were: W.C.
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